PLEASE READ TO UNDERSTAND.
ODM POSITION ON WHY THE PUNGUZA MIZINGO BILL FALLS SHORT OF CONSTITUTIONAL REVIEW EXPECTATIONS
Earlier this month, the Independent Electoral and Boundaries Commission (IEBC) announced that a proposed constitutional amendment bill sponsored by the Third Way Alliance Kenya Party, had met and surpassed the threshold of one million signatures required to initiate an amendment of the Constitution by popular initiative as envisaged under Article 257 of the Constitution of Kenya, 2010.
From the onset, we note the complete departure by the IEBC from the precedent it set in signature verification for a similar process in 2017 with the Okoa Kenya Bill presented by the CORD Coalition. It seems for the IEBC will apply different standards for the same exercise depending on who is presenting the signatures.
Indeed grave concerns remain on whether the third way alliance initiative met the required threshold given that the IEBC still does not have a database of signatures against which it can conduct a verification. The Election observer group ELOG has in fact pointed out that an analysis of the signatures presented by the Third way Alliance reveals mass duplication and doubts on authenticity of the same. Given the serious implications of the IEBC’s decision we join ELOG in calling for the IEBC to publish all the signatures so that Kenyans can confirm their authenticity.
It is also critical to point out that constitution making or amendment must always be people driven and result from the widest possible consultations with Kenyans of all walks of life which third way did not bother to attempt.
A proposer for a constitutional amendment through popular initiative has the option under article 257 to put forth general suggestions in the first instance whereupon the Public and other stakeholders would have opportunity to input, refine and enrich their proposals.
Third way chose to forego this and went straight to prepare a bill with their proposals which bill was the basis for collection of signatures. It is critical to understand that the Bill having been the basis of the collection of signatures must either be passed or rejected as is because the law does not envision any amendments thereto. To be clear, NO amendments, additions or subtractions can be made to the Punguza Mizigo Bill at this stage. The option for Kenyans is to accept it or reject it wholesomely.
We cannot to fail that the motivation of this initiative was to scuttle the Building Bridges Initiative, which the sponsor had attempted to achieve through court actions.
We have taken time to study the Bill and have found it problematic as it undermines the spirit of the very Constitution it seeks to amend. It is full of contradictions and inconsistencies and would result in a chaotic constitutional order while not even living to its promise of lessening the burden on the mwananchi.
We wish to specifically comment on the following proposals as contained in the Bill.
1. LIGHTENING THE BURDEN (PUNGUZA MIZIGO)
The Bill claims to be targeting expenditure sites that burden the Kenyan public but doesn’t even mention the real areas of concern. The biggest cause of burden to the Kenyan taxpayer is debt (domestic and foreign), which currently stands at Sh. 5.3 Trillion (68.9% of GDP). In the current 2019/20 FY, the country will spend Sh. 1.1 Trillion (61% of annual revenue) in servicing the debt.
It would have been helpful to propose mechanisms to control runaway borrowing such as a requirement for parliamentary approval of all foreign borrowing.
The debt is followed by corruption where it is estimated that the country loses more Sh. 600 Billion annually (about 10% of the annual budget or 30% of annual revenue collected). There is also estimated Sh. 200 Billion lost due to uncollected revenue.
Public wage bill has been cited as the biggest financial challenge facing the country. While it is a matter of concern, it is used more as a scarecrow to shield looting of public resources. Kenya’s public wage bill as a ratio of GDP is 8.3% against a global average of 7.5%. Salaries, allowances and wages of legislators and parliamentary staff account for less than 30% of the Sh. 43.8 Billion allocated in the 2019/20 FY or Sh. 13 Billion or 0.004% of the budget. While it is important to manage the wage bill – including for legislators – we need to tackle the problem holistically.
2. REVERSING WOMEN’S GAINS
The Bill seeks to delete Articles 100(a) and 177(b), which promote representation of women in Parliament and County Assemblies. It also seeks to abolish nomination in the National Assembly, County Assembly and the Senate. While it seeks to address the same in the National Assembly by proposing one woman per county, there are no mechanisms to realise two-thirds gender rule in the county assemblies and the Senate. Going by the current status, these Houses would be almost 100% male dominated. This is a step backwards because from the current 97 women currently in parliament, under Aukots bill this number drops to no more than 50.
The reconfiguration of the Parliament is the most confusing and retrogressive. The following issues stick out:
a It is proposed to abolish the 290 constituencies and instead have the 47 counties turned into constituencies. Having parliamentary representation at county level goes against the dictum of “No taxation without representation.” Long standing grievances of domination by larger tribes and clans in the past informed Kenyans desire to review the constituencies in the 2010 c9onstitution. These fears were well captured in the CKRC Report and the Report of the CoE and also well-articulated during the Bomas process.
Counties that are not mono-ethnic will see a return to long forgotten tensions. Many small communities that currently have representation stand to be disenfranchised. For instance:
• The Sabaot in Bungoma (Bukusu dominated)
• Kurias and Luhyas in Migori (Luo dominated)
• Tesos in Busia (Luhya dominated)
• Kipsigis in Narok (Maa dominated)
• Tavetas in Taita Taveta (Taita dominated)
• Mbeere in Embu county
• Banyore in Vihiga (Maragoli dominated) to name but a few
b The Proposal to designate the Senate as Upper House is not accompanied by concomitant redefining of the functions and powers of Senate and National Assembly. Without amendment of Article 95, the national Assembly will retain all the authority of ENACTING legislation while the Senate only PARTICIPATES (Art 96) in legislating. All the functions of appropriation of funds, oversight of state organs and approval of declaration of war and extension of state of emergency remain intact with National Assembly under Article 95. It is therefore not enough to just state that the Senate shall be the upper house.
c The Bill proposes to give the Senate veto powers over the decisions of the National Assembly. This power resides with the President and since Aukot’s Bill does not likewise amend Article 115 that gives the President power to refer bills back to the National Assembly, this proposal is recipe for chaos.
d The justification for having the senate to defend interest of counties is also negated by making counties the electoral districts for the National Assembly.
e The proposal to reduce membership of National Assembly and Senate to 94 and 47 respectively whilst failing to amend Article 121 (a) and amending Article 121(b) to raise the quorum from 15 to 24 would paralyse operations of these Houses due to frequent lack of quorum.
A quorum of 50 in a house of 94 members (53%) and 24 in a house of 47 (51%) does not take into account other official functions that at times keep members out of the chambers including committee work, official international travel, ill health etc.
f The proposal to have Senators and Members of the National Assembly elected by the same constituency, i.e by the counties makes no sense. What would be the rationale of making senators superior to National Assembly members yet they are elected by the same constituency
g In its proposed Article 96(5), the Bill purports to give the Senate the powers to establish whether a Bill from the National Assembly contravenes the Constitution or goes against public interest> This is a clear usurpation of the powers of the High Court under Article 165(3)(d).
h By proposing deletion of Article 90, the Bill strikes a blow against gains already made by women, youth, persons with disability and marginalised communities. Further Political parties are the recognized entities for realization of the rights under Article 90.
Whereas the bill proposes to retain 6 members nominated by “special interest groups” there is no mention of the mechanism through which those unknown, unidentifiable and undefined groups would submit their nominees for this purpose. It is a recipe for chaos.
The Bill proposes to abolish constituencies but purports to retain the wards as is. This is a cheeky gimmick to trick County Assemblies into supporting the Bill.
It is important to note that the Bill assigns the IEBC the responsibility of DELIMITING of wards, which basically means IEBC will then have power to REDUCE the number of wards should the amendments sail through. If Nairobi County were to become one Constituency with only two MPS for instance, our MCAs can rest assured there would be no justification for retaining the 85 wards.
5. COUNTY EXECUTIVE
The Bill seeks to abolish the position of Deputy Governor without a convincing justification. If it is on the account of cost, elevating one member of the CEC to perform the functions of principal assistant to the Governor would result in the same costs but with reduced accountability since the said CEC member would serve at the pleasure of the Governor. It is paradoxical that the Bill seeks to abolish the position of the DG but leaves that of Deputy President yet their establishments were premised on the same logic.
It is important to note that annual budget of the Office of the Deputy President alone equals the Total allocation of devolved funds to two counties, so that if you wanted to save costs, the Office of the DP should have been the target.
It is also a fact that having a DG removes the need to hold costly by elections in the event of the demise of a sitting Governor like happened in Nyeri. The smooth takeover saves costs. What Third Way proposes will increase costs by necessitating by elections in such instances.
Corruption is one of the serious causes of the financial burden the Kenyan taxpayer is carrying, yet proposals in the Bill do not address prevention and appropriate punishment thereof.
The Bill makes wild unworkable and half-wit proposals to make queries in audit reports the basis of prosecutions. While audit findings give investigative authorities vital starting point for investigating authorities to launch their inquiries, they cannot be the basis of prosecution.
The Bill further proposes to require the Auditor General to forward audits to the DPP and DCI within five days of completion of audit forgetting that the audit report is not an answer but a query. Further by failing to concomitantly amend Article 226 (2) which requires the Auditor general to submit reports only to the people’s representatives, the Bill creates an avenue for confusion and chaos
The proposal to try corruption suspects within 30 days is but a recipe for setting corruption suspect free. Corruption webs are normally so complex that concluding the trials within 30 days is no mean feat. There are a myriad of factors beyond human control that result in delays for trials. This is not to mention the potential for mischief because all a suspect would need to do is to raise as many objections and adjournments as possible for the 30 days to lapse then call for mistrial.
In our view, to deal with runaway corruption, the Constitution needs to be amended to achieve the following, which PUNGUZA MIZIGO Bill doesn’t):
a Need to review Articles 225-227 to tighten control of public finances
b Outlaw conflict of interest where public servants do business with the State, as was proposed in the 2017 NASA Manifesto
c Permanently bar persons convicted of economic crimes from ever serving in public service or doing business with government agencies.
d Strengthen public procurement and asset disposal laws.
e Making annual declaration of wealth public.
f Proving necessary independence for agencies charged with investigating and prosecuting economic crimes
g Rewarding integrity
h Protecting whistle-blowers
Further, the amendments proposed to Article 229 take away the accountability of the Auditor General to Parliament contrary to Article 226 and thus takes away the OAG’s independence.
7. CONSTITUTIONAL COMMISSIONS
The Bill proposes to delete Article 250(1) removing the mechanism for appointment of Members of independent Commissions without providing for an alternative. The proposed deletion 250(7) which makes remuneration of Commissioners a charge on the consolidated fund takes away the independence of the commissions, because once the salaries of independence commissioners are left to the whims of the executive there is potential for abuse.
Besides, it has been established that commissions that serve on a part-time basis are more costly than those on permanent basis. Some are known to schedule even 4 meetings in a day, each meeting drawing sitting allowances.
8. CONSTITUTIONAL CRISIS
The proposals seek to amend selected articles of the Constitution without considering the real risk to run counter to others – some of which we have pointed herein. This creates a crisis in the eventual implementation as no article is superior to another save for Article 2.
9. WHAT IT DOESN’T ADDRESS
The Bill fails to address a number of pertinent issues that Kenyans have identified previously. These include, but are not limited to:
a. Addressing the issue of inclusivity
b. Citizenship by birth
c. Structure of the Executive
d. Conflict of interest where public servants trade with the State
e. Electoral injustice (the germ for election-related conflicts)
f. Independence of investigative organs like DCI and IPOA
g. Strengthening Chapter 6 of the Constitution
10. AREAS OF CONCURRENCE
We concur with the Bill, fully or partially, with regard to:
a Need for rationalization of Parliament (but disagree on the numbers)
b 7-year non-renewable presidential term (but only in the context of a parliamentary system)
c Increasing equitable allocation to counties. However, while the Bill proposes this at 35%, we are of the view that it should be increased to 45%(including 5% Ward Development Fund)
d Making every Kenyan who acquires an identity card an automatic voter
From the foregoing, it is clear that few sound proposals are sandwiched with contradictory, outrageous and unsound ones.
The constitution is a wholesome document and its amendment must be approached in a wholesome manner. The quest for a perfect constitutional dispensation is not a race to see who gets there first. It must be a product of the most extensive consultative and people driven process.
Since the Bill proposed by the Third way alliance cannot be amended, and in light of the weaknesses laid out above, Kenyans are called upon to reject it and await the report of the Building Bridges Initiative where they will have a chance to debate the proposals before they are translated into a Constitutional Amendment Bill if any.
Orange Democratic Movement.
25th July 2019